Citation Nr: 0911646
Decision Date: 03/30/09 Archive Date: 04/08/09
DOCKET NO. 06-05 009 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to a rating in excess of 20 percent for
varicose veins of the left lower extremity.
2. Entitlement to a compensable rating paresthesias of the
left lower extremity status post ligation surgery for
varicose veins.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Dan Brook, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from May
1976 to May 1996. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a May 2004 rating
decision of the San Diego, California Regional Office (RO) of
the Department of Veterans Affairs (VA). A Travel Board
hearing was held at the RO in March 2009; a transcript of the
hearing is of record.
The Board notes that in his November 2004 Notice of
Disagreement (NOD), the Veteran contended that he had
numbness in his left ankle and the top of his right foot as a
residual of August 2003 surgery for his varicose veins. In
response to this contention, the RO assigned a separate
noncompensable rating for paresthesias of the left lower
extremity in the October 2005 statement of the case. Then,
in his February 2006 substantive appeal, the Veteran
contended that a higher rating should be assigned for his
varicose veins in part because of the numbness he
experienced. Accordingly, the Board finds that the separate
rating assigned to the paresthesias has also been placed in
appellate status.
FINDINGS OF FACT
1. The Veteran's varicose veins of the left lower extremity
are manifested by stasis pigmentation, along with prominent
areas of hyperexthesia and areas of hypoesthesia; persistent
edema is not shown.
2. The Veteran's paresthesias of the left lower extremity
are mild or at most moderate in degree.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 20 percent for
varicose veins of the left lower extremity are not met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic
Code (Code) 7120 (2008).
2. The criteria for a compensable rating for paresthesias of
the left lower extremity are not met. 38 U.S.C.A. § 1155
(West 2002); 38 C.F.R. § 4.124a, Code 8527 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Veteran has been advised of VA's duties to notify and
assist in the development of his claims. A December 2003
letter generally informed the Veteran of what the evidence
needed to show to substantiate the claim. It also explained
that VA would make reasonable efforts to help him obtain
evidence necessary to support his claim, including medical
records, employment records or records from other federal
agencies but that it was ultimately his responsibility to
ensure that records were received by VA. A March 2006 letter
provided notice concerning assignment of disability ratings
and effective dates in accordance with Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006)).
A May 2008 letter then provided more specific notice relating
to the evidence necessary to substantiate the claim. The
letter gave notice of how VA determines disability ratings
and indicated that in determining a rating, VA considers
evidence regarding the nature and symptoms of the condition,
severity and duration of the symptoms, the impact of the
condition and symptoms on employment, and the results of
specific tests. Further, the letter listed examples of
evidence that might support a claim for an increased rating
and provided notice of the specific rating criteria contained
in 38 C.F.R. § 4.104 Code 7120, the rating Code applicable to
rating the Veteran's low back disability. The Board finds
that the specific explanations provided pertaining to the
procedure for assigning the rating, the applicable rating
criteria and the necessary evidence was in substantial
compliance with the recent Court of Appeals for Veteran's
Claims (Court) ruling in Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008).
The Board notes that the Veteran was not provided specific
notice in a VCAA notice letter of the rating provisions
applicable to impairment of the internal saphenous nerve in
relation to his claim for increase for paresthesias of the
lower extremity. The Board finds, however, that the Veteran
was not prejudiced by this lack of notice. The rating
criteria was provided to the Veteran in the October 2005
statement of the case, he has been given a sufficient
opportunity to identify any evidence that might be pertinent
to the rating assigned and he has not identified any
additional, obtainable, pertinent evidence. Consequently, a
complete record was developed for purposes of assigning an
appropriate rating for this disability. The Board does not
find that more specified notice to the Veteran would have
resulted in any additional pertinent evidence being produced.
Accordingly, the lack of specificity did not prejudice the
Veteran as it did not affect the essential fairness of the
adjudication. See Sanders v. Nicholson, 487 F. 3d 881 (Fed.
Cir. 2007).
Although complete VCAA notice was not given prior to the
rating on appeal, the appellant had ample opportunity to
respond to the notice letters and to supplement the record
after notice was given. He is not prejudiced by any
technical notice deficiency that may have occurred along the
way, and no further notice is required. See Conway v.
Principi, 353 F.3d 1369 (Fed. Cir. 2004).
Regarding VA's duty to assist, the RO has obtained the
Veteran's service medical records, along with available VA
and private medical evidence. Additionally, the Veteran was
provided with a VA examination in August 2003. The Board
notes that a more contemporaneous examination is not
necessary as the record contains adequate current assessments
of the severity of the Veteran's varicose veins for purposes
of assigning an appropriate rating.
The Veteran has not identified any additional evidence
pertinent to this claim. VA's assistance obligations are
met. The Veteran is not prejudiced by the Board's proceeding
with appellate review.
II. Factual Background
In June 2003 the Veteran filed a claim for increased rating
(i.e. a rating in excess of 20 percent) for his service
connected varicose veins of the left lower extremity.
On August 2003 VA examination the diagnosis was essentially
asymptomatic varicose veins of both lower extremities, likely
involving the greater saphenous system and tributaries
bilaterally with no evidence of venous hypertension. The
Veteran reported that he had developed noticeable varicose
veins of his left lower extremity in 1994, which had resulted
in left saphenofemoral ligation surgery. After surgery he
did not notice any veins in the left lower extremity, but
over time he had noticed recurrent veins developing over his
left lower extremity and over the past year he had noticed
veins developing over his right lower extremity. He had
recently been evaluated by VA for surgery to remove his veins
and reported that the main reason for the surgery was
cosmetic. He did have some discomfort, which he described as
tightness after running, and also experienced transient
discomfort when he changed from a sitting to a standing
position but his symptoms were transient and minimal.
He recalled that after his surgery in 1994 he had some
sclerotherapy performed postoperatively but had not had any
other treatment since the treatment in 1994. Support
stockings were dispensed to him with his evaluation in July
2003 but he opted not to try them because he was not
especially troubled by his symptoms and was interested in
vein removal.
Physical examination showed a well-healed scar in the left
groin secondary to ligation. In addition, varicose veins
were present in both lower extremities, beginning in the calf
on the right and extending anteriorly, medially and
laterally, approximately 4 to 6 cm. Also, in his right foot,
2 mm varicose veins were noticeable. In his left lower
extremity varicose veins began in the mid thigh and extended
to the anterior, medial and posterior left calf and were
approximately 4 to 6 mm in diameter with 2 mm veins over the
left foot. There was no evidence of edema in the medial
malleolar areas and no evidence of brawny skin changes or
pre-ulcerative skin changes.
An August 2003 complete bilateral lower extremity venous
study produced diagnostic impressions of no deep venous
obstruction or reflux, incompetent saphenofemoral junction
and reflux throughout the length of the long saphenous vein.
An August 2003 VA operative report shows that the Veteran
received right saphenous vein stripping and saphenous vein
ligation with left side external saphenous vein stripping
externally, and bilateral phlebectomy. There were no
complications and the Veteran was stable to the post
anesthesia care unit.
An October 2003 progress note from Dr. Daniel Wallace, a
private treating physician, indicates that the Veteran's
varicose veins were healing well. In a separate October 2003
note Dr. Wallace indicated that the Veteran was experiencing
persistent cutaneous numbness in the bilateral lower
extremity.
At a November 2003 VA follow up visit the Veteran reported
numbness on his left anterior shin and similar numbness on
the dorsum of his right foot. This latter complaint caused
difficulty wearing work shoes and walking normally. He also
reported some swelling in the area of numbness on the left.
The attending vascular surgeon indicated that no doubt the
Veteran's neuropathy was due to the stab-avulsion of the
varicose clusters and that experience taught that it would
recede in time.
At a December 2003 follow up VA Nurse Practitioner visit the
Veteran reported that he still had numbness on his bilateral
anterior shin and inner aspect near the ankle on the left
leg. He also reported that the surgical site had healed
well. The Veteran denied any lower extremity edema.
An October 2004 VA progress note shows that the Veteran was
seen for a last postoperative visit. All of his wounds
remained healed but there was subjective numbness in the left
ankle. This was in the saphenous nerve distribution and was
undoubtedly related to the surgery. A new varicosity was
developing in the left calf and would need to be treated in
the future.
In his November 2004 NOD the Veteran indicated that the
numbness in his left ankle and on the top of his right foot
had not gone away and bothered him when he walked or jogged.
He also noted that the VA physician who had seen him in
October 2004 informed him that he would just have to live
with the numbness and that he should have waited instead of
having his August 2003 surgery because a new non surgical
procedure had been developed to remove varicose veins and he
could have avoided the ugly scars. The Veteran submitted
photos of his lower legs along with his NOD, which appear to
show small areas of scarring.
At a March 2005 VA Nurse Practitioner visit the Veteran
reported that he still had numbness on the anterior aspect of
the right foot. He also reported new varicosities
developing. Physical examination of the lower extremities
showed no edema in the lower extremities, well healed small
hyperpigmented scars, no erythema and small varicose veins
bilaterally.
A January 2006 progress note from Dr. Daniel Wallace shows a
diagnostic assessment of varicose veins. The Veteran was
instructed to wear support stockings.
On his February 2006 Form 9 the Veteran indicated that he had
permanent numbness of both his left ankle and right foot from
the August 2003 surgery. Also, he had developed some blue
pigmentation or eczema on his left leg. He felt that he
should receive a rating in excess of 20 percent due to the
numbness and the recurring varicose pigmentation. He noted
that he would not benefit from a monetary perspective from
the increased compensation (he was retired from the U.S.
Navy) but wanted to pursue the increase because he felt that
he had suffered permanent damage to his body, which was
deserving of the ratings increase.
In a February 2006 letter, Dr. Wallace indicated that the
Veteran had been his patient for the past 6 years. He had
left lower extremity varicosities for which he had previously
been treated with venous ligation in August 2003. Despite
the treatment and compliance with instructions regarding
conservative care, venous stasis pigmentation, pressure and
hyperesthesia persisted.
An April 2006 VA progress note shows a diagnostic assessment
of varicose veins. Examination showed small varicose veins
and small well-healed hyperpigmented scars. There was no
edema in the lower extremities.
An April 2007 VA progress note shows a diagnostic assessment
of varicose veins. It was noted that the Veteran did not
have any edema in the lower extremities and did have small,
well healed hyperpigmented scars. He also had compress
stockings.
In a December 2007 letter, Dr. David Liu, a private treating
physician, indicated that he had evaluated the Veteran for
persistent symptoms secondary to varicose veins in his
internal medicine clinic. On examination, he found prominent
varicose veins in the bilateral lower extremities. There was
prominent venous pigmentation, areas of hyperexthesia and
areas of hypoesthesia. He described the condition as
worsening despite prior ligation treatment and compliance
with conservative modalities.
A 2008 progress note from Dr. Liu shows a diagnostic
assessment of varicose veins. The Veteran complained of
worsening with numbness, pain and discoloration. The pain
was constant and was not worse with ambulation. There was no
significant swelling. The Veteran was wearing stockings
without improvement. He was advised to continue wearing the
stockings, along with leg elevation and exercise.
In a May 2008 letter, Dr. Liu indicated that he had evaluated
the Veteran for persistent symptoms secondary to varicose
veins. He continued to find prominent varicose veins in the
bilateral lower extremities, left greater than right. There
was prominent venous stasis pigmentation with focal thinning
of the skin and without frank ulceration. There were also
prominent areas of hyperexthesia and areas of hypoesthesia.
As a result the Veteran experienced continued pain, worse
during ambulation or running. The condition was worsening
despite prior ligation treatment and compliance with
conservative modalities. Dr. Liu had initiated a referral to
a vascular surgeon to assist in management.
In July 2008 argument the Veteran's representative contended
that if the Veteran did not regularly use his compression
stockings he more than likely would experience persistent
edema as a result of his varicose veins. The representative
also noted that the Veteran had varicose veins in the right
lower extremity and that these should factor in to whether a
higher rating is warranted.
At his March 2009 Board hearing the Veteran testified that he
worked as an agent for U.S. Customs and Board Protection and
his job involved standing for most of his 4 to 6 hour shift.
As a result, he felt tightness in the skin, ankles and
thighs, which was actually a swelling. He would have to
occasionally sit down during work because his legs would
cramp up and he had turned down overtime opportunities due to
tired legs and cramping. He also wore compression stockings
most of the day and had been wearing them since 2003. Dr.
Liu had advised the Veteran that he needed to wear the
compression stockings every day and that if he did not, he
would be experiencing tiredness during the day and his
varicose veins would get worse. When his varicose veins
would flare-up he would elevate his legs to obtain some
relief. He tried not to wear shorts because he had ugly
scars and because of his varicose veins protruding. In
addition the Veteran reiterated his problems with numbness in
the lower extremities related to the 2003 surgery. It was
also noted that the Veteran had varicosities in his right
lower extremity. It was further noted that a third surgery
was being contemplated for the Veteran's varicose veins.
III. Law and Regulations
Disability ratings are based on average impairment in earning
capacity resulting from a particular disability, and are
determined by comparing symptoms shown with criteria in VA's
Schedule for Rating Disabilities (Rating Schedule).
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities.
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations, which are
potentially applicable, based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
The Board will consider whether separate ratings may be
assigned for separate periods of time based on facts found, a
practice known as "staged ratings," whether it is an
initial rating case or not. Fenderson v. West, 12 Vet.
App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505
(2007). The Board finds, however, that staged ratings are
not warranted here, as the degree of impairment due to
Veteran's disabilities has not varied significantly during
the appeal period.
Where there is a question as to which of two evaluations
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b).
When all of the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the Veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which case the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
IV. Analysis
Varicose Veins
The Veteran's varicose veins of the left lower extremity are
evaluated under 38 C.F.R. § 4.104, Code 7120. Under Code
7120, a 20 percent rating is warranted when there is
persistent edema, incompletely relieved by elevation of
extremity, with or without beginning stasis pigmentation or
eczema. A 40 percent rating is warranted when there is
persistent edema and stasis pigmentation or eczema, with or
without intermittent ulceration. A 60 percent rating is
warranted when there is persistent edema or subcutaneous
induration, stasis pigmentation or eczema, and persistent
ulceration. The highest rating of 100 percent is not
warranted unless there is massive board-like edema with
constant pain at rest. Ratings under Code 7120 are for
involvement of one extremity. If more than one service
connected extremity is involved, ratings are to be
appropriately combined. 38 C.F.R. § 4.104. Persistent is
defined as "insistently repetitive or continuous, tenacious,
or enduring." Smith v. Principi, 17 Vet. App. 168 (2003)
(citing Webster's II New College Dictionary).
At the outset the Board notes that only the left lower
extremity is subject to service connection for varicose
veins. Accordingly, varicosities of the right lower
extremity do not factor into whether an increased rating is
warranted. 38 C.F.R. § 4.104, Code 7120. In regard to the
left lower extremity, the evidence of record does not
establish that the Veteran experiences persistent edema
associated with his varicose veins. In this regard, none of
the progress notes or letters from treating physicians
indicate that the Veteran experiences persistent edema and
several reports (including the August 2003 VA examination
report and VA progress notes from December 2003, March 2005,
April 2006 and April 2007 specifically note the lack of
edema. In addition, Dr. Liu's May 2008 letter noted the lack
of any significant swelling.
The Veteran's representative contends that the Veteran would
have persistent edema if he did not faithfully wear his
compression stockings. Even if this is an accurate
statement, however, Code 7120 does not assign ratings based
on whether edema would be present if preventative measures
were not taken. Instead ratings are assigned based on
whether persistent edema is actually manifested. As the
presence of persistent edema has not been established the
assignment of a higher (40 percent) rating for the Veteran's
left lower extremity varicose veins is not warranted. The
Board notes that it will not disturb the existing 20 percent
rating already assigned to the Veteran even though assignment
of this rating also requires the presence of persistent
edema.
The Board has also considered whether a separate rating could
be assigned for scarring of the left lower extremity
associated with the surgery the Veteran received for varicose
veins. As it is not established that any of the Veteran's
scars are deep, unstable, painful on examination, cause
limited motion, encompass an area greater than 144 square
inches or otherwise cause limitation of function, a separate
rating on the basis of scarring is not warranted. 38 C.F.R.
§ 4.118, Codes 7801-7805.
Paresthesias of the left lower extremity
The Veteran's service connected paresthesias of the left
lower extremity are rated under 38 C.F.R. § Code 8527, for
impairment of the internal saphenous nerve. Use of this
rating Code is appropriate given the October 2004 VA finding
that the Veteran's left ankle numbness was in the saphenous
nerve distribution. Under Code 8527, severe to complete
paralysis is required for a compensable (10 percent) rating
for the internal saphenous nerve. In the instant case severe
to complete paralysis is not shown as the Veteran only
experiences numbness in this area. (Dr. Liu has indicated
that the Veteran has experienced some pain but has not
specifically attributed the pain to the nerve involvement.
Also, even if the Veteran does have saphenous nerve
distribution pain, this still does not warrant a compensable
rating). See definition of incomplete paralysis contained in
38 C.F.R. § 4.124a, following Code 8412, which indicates that
when the involvement is wholly sensory, the rating assigned
should be for the mild, or at most, the moderate degree.
Accordingly, a compensable rating for paresthesias of the
left lower extremity is not warranted.
ORDER
Entitlement to a rating in excess of 20 percent for varicose
veins of the left lower extremity is denied.
Entitlement to a compensable rating paresthesias of the left
lower extremity status post ligation surgery for varicose
veins is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs